Editors’ note: We are reposting this analysis, first published on January 10, 2019, when President Trump had suggested he might declare an emergency at the border.
Does the president have, as he says, “the absolute right” to do this? Well, very little about presidential power is supposed to be absolute. But the NEA can now be added to the list of statutes passed by Congress during its post-Watergate resurgence that were meant to rein in the presidency but have, in fact, empowered it.
In 1973, the United States had been in a continuous state of emergency for four full decades — since 1933. The Depression, World War II, and the Korean War had all prompted such declarations; so had a 1970 postal strike and a 1971 international monetary crisis linked to President Nixon’s imposition of wage and price controls on the U.S. economy. During this period, Congress had delegated a wide array of powers to the president to meet various exigencies and had not bothered to repeal many of them — and thus nearly 500 discretionary powers were available to the president. A Senate committee examining the question in 1973 found “this vast range of powers, taken together, confer[s] enough authority to rule the country without reference to normal constitutional procedures.”
The National Emergencies Act was passed in 1976 to reboot the system. It started by phasing out existing emergency powers and setting a one-year (though renewable) limit on future states of emergency. There remain more than 120 provisions in law that are on standby if needed. But under the NEA, presidents had to specify which powers, in which laws, they were activating (i.e., not all of them at once). Any ongoing emergency could be terminated at any time by Congress, which was supposed to regularly consider just that question.
So where do we stand? Well, as of 2019, the United States has been in a continuous state of emergency for four full decades — since 1979.
That particular emergency was declared by President Jimmy Carter, to freeze Iranian assets after the seizure of the U.S. Embassy in Tehran. It has been renewed every year since, by six other presidents. But others have been added, too, as Lawfare’s Catherine Padhi usefully documents; in fact, CNN counts 31 of them. All but two utilize powers under the International Emergency Economic Powers Act (IEEPA) of 1977, which allows presidents to impose financial sanctions on hostile foreign actors. Sometimes this has provided a way for presidents to unilaterally implement their policy preferences, as when President Ronald Reagan applied IEEPA sanctions against Nicaragua in 1985 as a substitute for those Congress had refused to enact.
That sounds a lot like Trump’s “emergency” — though his would manipulate U.S. government funds instead of foreign investments. Two provisions governing Pentagon spending allow using already appropriated moneys for new purposes when, for example, the emergency “requires or may require the use of the armed forces” on projects “essential to the national defense.”
Is the wall such a project? That’s far from clear — and courts would quickly be asked to decide. The president’s own words might not help his case. He said that declaring an emergency would come “if I can’t make a deal” rather than because of the objective situation on the border. Yale law professor Bruce Ackerman goes as far as to argue that orders to the military to build the wall under these circumstances would be illegal — so illegal that a soldier could be prosecuted for following them.
But usually courts are loath to overrule presidential determinations of this sort by substituting their own judgment of what constitutes an “emergency.” In fact, nothing in the statute says there actually has to be a national emergency — only that the president declare that there is one. I’ve written before on presidents’ use of statutory interpretation in their favor; they find new meaning in old laws when they can’t get new laws passed. Trump’s action would do just this — it would build a wall, without first building consensus in Congress.
All this means that efforts to constrain executive authority can sometimes legitimate it. The NEA and IEEPA fit into laws passed after Watergate and the Vietnam War that were designed to limit presidential unilateralism and regain for Congress a real say in questions of war and peace, spending and ethics. But the NEA and IEEPA, like the War Powers Resolution, the Congressional Budget and Impoundment Control Act, and the Ethics in Government Act, were what the legal scholar Gerhard Casper has called “framework statutes.” They were laws designed not to solve a particular policy problem but to channel information and authority through new procedures and veto points. At the same time, they took presidential claims that used to be explicitly extralegal and gave them a new statutory grounding.
But to make such a framework work? That requires legislators to hold up their end of the bargain, and time after time, Congress has failed to enforce its own prerogatives. For instance, since the NEA’s passage, Congress has never rescinded a declared emergency. These days, it is hard to imagine that it could. The NEA originally allowed legislators to cancel emergency powers with a concurrent resolution — a legislative vehicle that does not require presidential signature to become effective. But a 1983 Supreme Court ruling said such measures were not legally binding. A 1985 amendment to the NEA fixed that problem — but by requiring presidential signature, which also means the possibility of presidential veto.
Thus a 2/3 majority of both chambers of Congress will be required to rescind any such emergency or, for that matter, to take other action in response to presidential overreach. That is a big bipartisan ask, of course, but it represents exactly the sort of institutional pride on which framework statutes rely. As national security law scholar Susan Hennessy recently wrote, “for the president to transparently abuse the emergency discretion granted by statute and for Congress to accede to that abuse is an exceptionally grave signal of serious structural breakdown.”
Perhaps an “emergency” will remind legislators of their past attacks on the “imperial presidency.” Otherwise, as Justice Robert Jackson wrote, dissenting in the infamous Korematsu case, the powers they provide “li[e] around like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” And what “plausible claim” comes next?